Santa Clara Law Review
Volume 41 | Number 1
Article 4
1-1-2000
Baehr Mysteries, Retroactivity, and the Concept of
Law
Mark Strasser
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Mark Strasser, Baehr Mysteries, Retroactivity, and the Concept of Law, 41 Santa Clara L. Rev. 161 (2000).
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BAEHR MYSTERIES, RETROACTMITY, AND THE
CONCEPT OF LAW
Mark Strasser*
I. INTRODUCTION
In Baehr v. Lewin,' a plurality of the Hawaii Supreme
Court held that the state statute reserving marriage for
different-sex couples implicated equal protection guarantees,
and then remanded the case to give the state an opportunity
to defend the statute's constitutionality. On remand, the
lower court found that the state had failed to meet its
constitutional burden,' although that court stayed its own
In the
decision pending state supreme court review.
meantime, the Hawaii electorate amended the state
constitution via referendum to permit the legislature to
reserve marriage for different-sex couples.
The Hawaii amendment raises a variety of constitutional
issues. For example, if indeed the pre-amended constitution
guaranteed the right to marry a same-sex partner, then
arguably there was a violation of federal constitutional
guarantees when state constitutional protections were
withdrawn and the marriage rights of a disfavored group
were made subject to the will of the state legislature.3
However, when examining the amendment in Baehr v. Miike,4
* J.D., Stanford Law School; M.A. and Ph.D., University of Chicago; B.A.,
Harvard College. The author is Professor of Law, Capital University Law
School. The author wishes to thank Vincent Samar for his insightful comments
on an earlier version of this article.
1. 852 P.2d 44 (Haw. 1993) (plurality decision), reconsiderationgranted in
part,875 P.2d 225 (Haw. 1993).
2. See Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996).
3. For a discussion of this issue, see generally Mark Strasser, Statutory
Construction, Equal Protection, and the Amendment Process: On Romer,
Hunter, and Efforts to Tame Baehr, 45 BUFF. L. REV. 739 (1997).
4. 1999 Haw. LEXIS 391; see also <http'//www.Hawaii.gov/jud/20371.htm>
for the majority opinion, and <http'//www.Hawaii.gov/jud/20371con.htm> for
162
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the Hawaii Supreme Court ostensibly addressed a very
narrow issue, namely, whether the amendment retroactively
validated a law reserving marriage for different-sex couples,
and actually addressed a different narrow issue, namely, how
the court might reconcile potentially conflicting constitutional
provisions.
The court implicitly held that the amendment
retroactively validated a portion of the Hawaii marriage
statute, although the opinion was remarkably terse, making
its exposition and analysis somewhat difficult. Nonetheless,
it is possible to reconstruct some of the possible positions of
the court and some of the difficulties inherent therein.
Part II of this Article addresses the existing
jurisprudence concerning the conditions under which
amendments can retroactively validate statutes or portions
thereof, and concludes that the Hawaii constitutional
amendment should not have been construed to retroactively
validate the same-sex marriage prohibition.
Part III
addresses a specific provision in the Hawaii Constitution that
might be thought to modify the existing jurisprudence.
However, both the language of the provision itself and the
relevant case law suggest that this constitutional provision
reflects the accepted retroactivity jurisprudence and thus
cannot justify a departure from that settled approach. Part
IV addresses some of the positive aspects or implications of
the Baehr decision, e.g., its reaffirmation that same-sex
marriage prohibitions classify on the basis of sex and its
suggestion that the Hawaii Constitution prohibits
discrimination on the basis of orientation.
The Article
concludes
that
neither the
existing
retroactivity
jurisprudence nor the unusual Hawaii constitutional
provision warrants the Hawaii Supreme Court's holding that
the recent state constitutional amendment retroactively
validated a portion of the marriage statute-indeed, the
court's construction of the amendment casts doubt on the
amendment's validity.
Nonetheless, the court's equal
protection holding and analysis are positive developments in
the movement to secure equal rights for lesbians and gays,
and may eventually be seen as the most significant part of the
opinion, both locally and nationally.
the concurring opinion.
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BAEHR MYSTERIES
II. ON AMENDMENTS AND THE RETROACTIVE
VALIDATION OF STATUTES
In response to two court decisions' suggesting that the
state constitution might protect the right to marry a same-sex
partner,6 the Hawaii electorate voted to amend their state
constitution to empower the state legislature to reserve
marriage for different-sex couples.7
By doing so, the
electorate made it possible for the legislature to pass such a
statute without having to worry that the courts might
invalidate it on state constitutional grounds.' Assuming that
the referendum itself violated no constitutional guarantees
and that states as a general matter have the power to reserve
marriage for different-sex couples,9 the amendment clearly
empowered the Hawaii Legislature to enact a statute
precluding same-sex couples from marrying. A separate issue
is whether the amendment retroactively validated a portion
of the marriage statute thereby limiting marriage to
different-sex couples or whether, instead, the amendment
merely empowered the legislature to enact a new statute
incorporating that restriction.
A. Retroactivity Doctrine
Whenever a court or legislature modifies existing law,
those potentially affected by the change need to know when it
will go into effect. The general rule is that statutes apply
5. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (plurality decision holding
that state's same-sex marriage ban had to be subjected to strict scrutiny),
recons. granted in part, 875 P.2d 225 (Haw. 1993); Baehr v. Miike, 1996 WL
694235 (Haw. Cir. Ct. Dec. 3, 1996) (state failed to meet its burden to justify its
reserving marriage for different-sex couples).
6. See Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the
UnconstitutionalPublic Policy Exception, 106 YALE L.J. 1965, 1965 (1997) ("We
can confidently predict that Hawaii will recognize same-sex marriages . . ").
7. See Philip L. Bartlett II, Recent Legislation, Same-Sex Marriage, 36
HARV. J. on LEGIS. 581, 581 (1999) ("On November 3, 1998, Hawaii voters
overwhelmingly passed a referendum amending the state's constitution to give
the legislature the power to reserve marriage to opposite-sex couples.").
8. This assumes both that the referendum did not itself offend
constitutional guarantees and that federal constitutional protections do not
preclude states from reserving marriage for different-sex couples.
9. For a discussion suggesting that reserving marriage for different-sex
couples violates various constitutional guarantees, see generally Mark Strasser,
Domestic Relations Jurisprudence and the Great, Slumbering Baehr: On
Definitional Preclusion, Equal Protection, and Fundamental Interests, 64
FORDHAM L. REV. 921 (1995).
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prospectively and judicial decisions apply retroactively,"°
although this general rule, like many others, has exceptions."
Retroactive application of statutes is not favored in the
Prospective
because of unfairness concerns. 3
law'
application "prevents the assigning of a quality or effect to
acts or conduct which they did not have or did not
contemplate when they were performed."14 As the Supreme
Court explained in General Motors Corp. v. Romein,5
"Retroactive legislation presents problems of unfairness that
are more serious than those posed by prospective legislation,
because it can deprive citizens of legitimate expectations and
upset settled transactions."'6
The Court's concern that a retroactive application of the
law might undermine legitimate expectations would also
support the prospective application of judicial decisions, since
individuals' reasonable expectations might be based on case
law rather than on statutes, and in either case, individuals
might have made plans and commitments based on those
Those concerns notwithstanding,
reasonable expectations.'
10. See Jill E. Fisch, Retroactivity and Legal Change: An Equilibrium
Approach, 110 HARV. L. REV. 1055, 1057 (1997) ("The general principle that
statutes operate prospectively and judicial decisions apply retroactively is a
matter of black letter law .
.
. ."); see also Nelson
Lund, Retroactivity,
InstitutionalIncentives, and the Politics of Civil Rights, 1995 PUB. INT. L. REV.
87, 87 ("Legislatures declare in general terms what the law shall henceforth be,
while courts resolve disputes by declaring the specific effects of preexisting
general laws.").
11. See William N. Eskridge Jr., Reneging on History? Playing the
Court/ Congress/President Civil Rights Game, 79 CAL. L. REV. 613, 666 (1991)
("The traditional, but not iron-clad, rule has been that legislation only applies
prospectively, whereas judicial interpretation of legislation applies
retroactively.").
12. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)
("Retroactivity is not favored in the law. Thus, congressional enactments and
administrative rules will not be construed to have retroactive effect unless their
language requires this result.").
13. See Brian Neff, Comment, Retroactivity and the Civil Rights Act of 1991:
An Opportunity for Reform, 1993 UTAH L. REV. 475, 476 ("Retroactive
legislation has long been recognized as carrying special potential for
unfairness.").
14. Union Pac. R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199
(1913).
15. 503 U.S. 181 (1992).
16. Id. at 191.
17. See State v. Ikezawa, 857 P.2d 593, 598 (Haw. 1993) ("[W]here
substantial prejudice results from the retrospective application of new legal
principles to a given set of facts, the inequity may be avoided by giving the
guiding principles prospective application only.").
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BAEHR MYSTERIES
however, judicial decisions are often applied retroactively, 8
and thus the desire to prevent unfairness cannot alone
the
presumptions concerning
explain the different
retroactivity of judicial and legislative acts.
In Great Northern Railway Co. v. Sunburst Oil &
Refining Co.,"9 the Court discussed the "ancient dogma that
the law declared by its courts had a Platonic or ideal
existence before the act of declaration, in which even the
discredited declaration will be viewed as if it had never been,
and the reconsidered declaration as law from the beginning.""
Thus, if the Court declared a statute unconstitutional but
then subsequently overruled itself, the Court's initial ruling
of unconstitutionality might be viewed as if it had never
occurred and the statute might be viewed as if it had been
good law from the beginning. According to this theory, judges
report what the law is rather than create the law, 2' and a
"misstatement" by a court about the law would not change
the character of the law itself but, instead, would only be an
inaccurate reporting of that law. Once the court corrects its
inaccurate reporting, the law (which had always existed even
if it had been mis-described) could even be applied to events
that had occurred before the mis-description had been
corrected."
18. See Mark Strasser, ConstitutionalLimitations and Baehr Possibilities:
On Retroactive Legislation, Reasonable Expectations, and Manifest Injustice, 29
RUTGERS L.J. 271, 304 (1998) ("[Tlhe Court's position now seems to be that it
will retroactively apply its most recent interpretation of federal law, justified
expectations or reliance interests of the parties notwithstanding.").
19. 287 U.S. 358 (1932).
20. Id. at 365.
21. Cf. American Trucking Ass'n, Inc. v. Smith, 496 U.S. 167, (1990) (Scalia,
J., concurring in the judgment).
[Pirospective decision-making is incompatible with the judicial role,
which is to say what the law is, not to prescribe what it shall be. The
very framing of the issue that we purport to decide today-whether our
decision ... shall "apply" retroactively-presupposes a view of our
decisions as creating the law, as opposed to declaring what the law
already is.
Id. at 201.
22. See Erica Frohman Plave, Note, The Phenomenon of Antique Laws: Can
a State Revive Old Abortion Laws in a New Era?, 58 GEO. WASH. L. REV. 111
(1989).
The concept is that judges discover the law; they do not create it. As
such, judicial decisions "are mere evidences of the law, not the law
itself; and an overruling decision is not a change of law but a mere
correction of an erroneous interpretation." Because a decision that
holds a statute unconstitutional does not abolish or repeal the act, the
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Certainly, it might be suggested that the above theory
inappropriately reifies the law and, further, imposes unfair
burdens on individuals who might be acting in light of the
court's past "misstatement" of the relevant law.24 States have
the option of saying that individuals will be bound by the
"misstated law" until the court has corrected its own
misstatement, although states do not have to do so as long as
no other constitutional provisions would thereby be violated.25
The analysis above distinguishing between the law on
the one hand and how it is reported on the other is not helpful
in a situation in which a legislature has modified an existing
law. In that situation, the modified law came into being in its
current form when the legislature changed the former law.2
Because the law is new (insofar as it has been modified), it
subsequent overruling decision merely reaffirms the statute's validity,
permitting its enforcement without reenactment.
Id. at 112.
23. See Jerome A. Hoffman, Thinking About Presumptions: The
"Presumption"of Agency from Ownership as Study Specimen, 48 ALA. L. REV.
885, 950 n.243 (1997) ("One reifies 'law,' of course, when one responds to the
idea of law as if it were a thing--or more accurately, an essence, a spirit, a
brooding omnipresence in the sky. Symptoms of this mindset abound. One
hears talk of The Law.").
24. The Alabama Supreme Court reversed itself with respect to whether the
state's anti-miscegenation law violated equal protection guarantees, overruling
its former finding that such a law was unconstitutional. See Green v. State,
1877 WL 1291 (Ala.). The question before the court was whether the defendant
had committed a crime by marrying someone of a different race, and the court
held that she had, notwithstanding that the court had previously suggested that
the state statute violated the Fourteenth Amendment to the Federal
Constitution. See Burns v. State, 1872 WL 895 *1-2. Because she had married
in 1876, see Green, 1877 WL at *1, which had occurred after Burns but before
Green had been decided, the court recognized that it would be unfair to punish
her for this "crime." The court wrote, "In view of the decision made by our
predecessors in ... [Burns], which is hereby overruled, we trust that the
Executive of the State will find just reasons in this case, why appellant should
receive a pardon." Id. at *6. The court did not hold that this prosecution was a
denial of due process or involved an ex post facto law-on the contrary, the
conviction was upheld, but the court suggested that a pardon should be issued.
See id.
25. The Court also discussed the possibility that a state might choose to say
that the decision was good law until it was overruled. See Great N. Ry. Co., 287
U.S. at 364 ("A state ... may say that decisions of its highest court, though later
overruled, are law nonetheless for intermediate transactions."); see also State v.
Ikezawa, 857 P.2d 593, 597 (Haw. 1993) ("Although judicial decisions are
assumed to apply retroactively, such application is not automatic.").
26. This way of speaking also seems to reify the law. The point here is not
to engage in ontological debate but merely to distinguish between laws that
have been changed by the courts versus those changed by legislatures.
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167
cannot be claimed that the law has always existed in its
current form and thus would appropriately be applied
retrospectively."
To make clear how the above theory treats legislative
modifications on the one hand and judicial modifications on
the other, consider a legislature that has passed a statute,
repealed it, and then reenacted it.
Each legislative
enactment would be prospective 8 because the existing law
would have changed after each enactment. Thus, absent
specific language to the contrary, 9 only events occurring after
enactment would be subject to the newly adopted rule.
Consider a different scenario: The legislature passes a
law and opponents challenge it. The state supreme court
holds that it is unconstitutional, but then, subsequently,
overrules the opinion striking down that law. According to
the theory described here, the law would have existed the
entire time, even though the court had mistakenly held that
the law was unconstitutional. ° Further, the law could be
27. See supra notes 19-22 and accompanying text.
28. This would be true unless the legislature explicitly made clear that the
statute was to have retroactive effect. See infra note 35 and accompanying text.
29. See infra note 35 and accompanying text.
30. See McCollum v. McConaughy, 119 N.W. 539, 541 (Iowa 1909) ("That a
statute which has been held unconstitutional, either in toto or as applied to a
particular class of cases, is valid and enforceable after the supposed
constitutional objection has been removed, or in cases in which the objection is
not applicable, is well settled.") (citing In re Rahrer, 140 U.S. 545 (1891));
It was not the overruling of those cases which gave validity to the
statutes; but the cases having been overruled, the statutes must be
regarded as having all the time been the law of the State. This court
has no power to repeal or "abolish" statutes. If it shall hold an act of the
legislature unconstitutional, while its decision remains, the act must be
regarded as invalid. But if it shall afterward come to the conclusion
that its former ruling was erroneous, and overrule it, the statute must
be regarded for all purposes as having been constitutional and in force
from the beginning, and the rights of parties must be determined
accordingly.
Pierce v. Pierce, 46 Ind. 86, 95-96 (1874); Jawish v. Morlet, 86 A.2d 96, 97 (D.C.
App. 1952) ("There are comparatively few cases dealing squarely with the
question before us, but they are unanimous in holding that a law once declared
unconstitutional and later held to be constitutional does not require reenactment by the legislature in order to restore its operative force."); see also
Earl T. Crawford, The Legislative Status of an Unconstitutional Statute, 49
MICH. L. REV. 645, 651 (1951) ("It can probably be stated as a general rule,
applicable even in those jurisdictions which regard an unconstitutional statute
as void, that re-enactment is not necessary to make the statute effective as a
law again where the decision declaring it unconstitutional has been
subsequently overruled.").
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applied to events that had occurred even before the court had
overruled itself because the law would have existed then even
if the court had not recognized that fact.
The above theory regarding which changes to statutes
should be applied retroactively does not entirely reflect
current retroactivity practices. Considerations of fairness or
public policy might militate against applying a law to
particular parties when the court has once declared the law
3
unconstitutional and subsequently declared it constitutional,
notwithstanding that, in theory, the law had always existed
and the court had simply been mistaken about its
constitutionality."
There is another respect in which the above theory of
retroactivity does not account for current practices. Statutes
can be applied retroactively as long as two conditions are met:
(1) the Legislature clearly intended the statute to be
retroactive, and (2) no constitutional guarantees would be
violated by applying the statute retroactively.33
The Court has made clear that the "first rule of
construction is that legislation must be considered as
31. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371
(1940).
The past cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to invalidity may have to be
considered in various aspects-with respect to particular relations,
individual and corporate, and particular conduct, private and official.
Questions of rights claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon accordingly, of
public policy in the light of the nature both of the statute and of its
previous application, demand examination.
Id. at 374.
32. See Lemon v. Kurtzman, 411 U.S. 192, 199 (1973) ("However appealing
the logic of Norton may have been in the abstract, its abandonment reflected
our recognition that statutory or even judge-made rules of law are hard facts on
which people must rely in making decisions and in shaping their conduct."); cf.
Norton v. Shelby Co., 118 U.S. 425, 442 (1886) ("An unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates
no office; it is, in legal contemplation, as inoperative as though it had never
been passed.").
33. In re Marriage of Buol, 218 Cal. Rptr. 31 (1985) (en banc).
Legislative intent, however, is only one prerequisite to retroactive
application of a statute. Having identified such intent, it remains for
us to determine whether retroactivity is barred by constitutional
constraints. We have long held that the retrospective application of a
statute may be unconstitutional if it is an ex post facto law, if it
deprives a person of a vested right without due process of law, or if it
impairs the obligation of a contract.
Id. at 34.
2000]
BAEHR MYSTERIES
169
addressed to the future, not to the past."4 As the Supreme
Court of Alabama explained, "statutes generally will be held
to operate prospectively unless the purpose and intention of
the legislature to give them a retrospective effect clearly
appears."" Especially where the statute regulates conduct or
interferes with previously existing rights, "a retrospective
operation will not be given to a statute ...unless such be 'the
unequivocal and inflexible import of the terms, and the
manifest intention of the legislature."' Further, courts will
decline to give a statute retroactive effect if doing so "would
result in manifest injustice." 7
A legislature that clearly expresses its intention to make
a statute retroactive will not guarantee the constitutionality
of that statute, even if its constitutionality would not be in
question were it to apply prospectively only.8 As the United
States Supreme Court has explained, "It does not follow,
however, that what Congress can legislate prospectively it
can legislate retrospectively. The retrospective aspects of
legislation, as well as the prospective aspects, must meet the
test of due process, and the justifications for the latter may
not suffice for the former."39
Retroactive legislation may be struck down if it
"abrogates 'vested rights'"4" or "deprives a person of a vested
34. Union Pac. R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199
(1913); see also Auffm'ordt v. Rasin, 102 U.S. 620, 622 (1880) ("ITihe principle is
too well established to need the citation of authorities, that no law will be
construed to act retrospectively unless its language imperatively requires such
a construction."); Phillips v. Curiale, 608 A.2d 895, 898 (N.J. 1992) (discussing
"the general principle of statutory construction that courts favor the prospective
application of statutes") (citing Twiss v. State, 591 A.2d 913, 915 (N.J. 1991)).
35. Fuqua v. Fuqua, 104 So. 2d 925, 926 (Ala. 1958); see also United States
v. Heth, 7 U.S. 399, 413 (1806) (Paterson, J.) ("Words in a statute ought not to
have a retrospective operation, unless they are so clear, strong, and imperative,
that no other meaning can be annexed to them, or unless the intention of the
legislature cannot be otherwise satisfied.").
36. Union Pac. R.R. Co., 231 U.S. at 199 (quoting United States v. Heth, 7
U.S. 399, 413 (1806) (Paterson, J.).
37. See Bradley v. School Bd.of Richmond, 416 U.S. 696, 711 (1974).
38. See Fuqua, 104 So. 2d at 926 ("Where the language of the statute clearly
requires retroactive construction it must be so construed even through it may be
held to be unconstitutional.").
39. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16-17 (1976); see also
Fisch, supra note 10, at 1074 ("The Court has made clear, however, that the
retroactive operation of a statute is subject to a separate due process inquiry.").
40. See Phillips, 608 A.2d at 901 ("[W]e have traditionally determined the
constitutionality of retroactive legislation by examining whether the statute
impairs or abrogates 'vested rights-'); see also Fuqua, 104 So. 2d at 926 ("It was
SANTA CLARA LAW REVIEW
[Vol. 41
Some courts and
right without due process of law."'
commentators reject the vested rights analysis in favor of a
consideration of:
such factors as the significance of the state interest served
by the law, the importance of the retroactive application of
the law to the effectuation of that interest, the extent of
reliance upon the former law, the legitimacy of that
reliance, the extent of actions taken on the basis of that
reliance, and the extent to which the retroactive
application of the new law would disrupt those actions.42
In any event, the Court has made quite clear that not all
retroactive statutes violate constitutional guarantees.
The general rule is that modifications to the law made by
legislatures are prospective only and that modifications made
However, some court-made
by judges are retrospective.
changes are prospective and, more importantly for purposes
here, some legislative changes are retroactive. Nonetheless,
although legislative changes to the law can be retroactive,
they are still disfavored, both in that the retroactive
application must be clearly expressed and in that the
retroactive application itself must survive constitutional
analysis.
B. On Amendments and Retroactive Validation
Courts have taken a number of approaches with respect
to whether a state constitutional amendment can
retroactively validate a statute enacted prior to the
within legislative competency to enact retroactive legislation affecting the
marital status, just so no vested rights were affected.").
41. In re Marriage of Buol, 218 Cal. Rptr. 31, 34 (1985) (en banc).
42. In re Marriage of Bouquet, 128 Cal. Rptr. 427, 433 (1976) (en banc); see
also James L. Kainen, The Historical Framework for Reviving Constitutional
Protectionfor Property and ContractRights, 79 CORNELL L. REV. 87, 114 (1993)
("[Ulnder the modern analysis a right's vulnerability to subsequent legislative
interference does not depend upon whether the right has 'vested.' Substantive
due process provides the test. Courts consider the rationality, reasonableness
or arbitrariness of legislation-factors which attach no independent significance
to a statute's being vested rights-retroactive.") (footnotes omitted).
43. See Charles B. Hochman, The Supreme Court and the Constitutionality
of Retroactive Legislation, 73 HARV. L. REV. 692, 694-95 (1960) ("[Tlhe Court
has consistently held that not all retrospective statutes are unconstitutional,
but only those which, upon a balance of the considerations on both sides, are felt
to be unreasonable."); see also In re Marriage of Bouquet, 128 Cal. Rptr. at 432
("Retroactive legislation, though frequently disfavored, is not absolutely
proscribed.").
2000]
BAEHR MYSTERIES
amendment's adoption. For example, the Supreme Court of
Michigan suggested that if a legislature is prohibited from
passing a particular law and nonetheless does so, "such
enactment is of no more force or validity than a piece of blank
paper, and is utterly void, and power subsequently conferred
upon the legislature by an amendment of the constitution does
not have a retroactive effect, and give validity to such void
law." The Nevada Supreme Court offered a similar analysis.
"An act of the legislature which is not authorized by the state
constitution at the time of its passage is absolutely null and
void."45 Indeed, the Nevada court suggested, "It is a misnomer
to call such an act a law. It has no binding authority, no
vitality, no existence. It is as if it had never been enacted, and
it is to be regarded as never having been possessed of any legal
force or effect."'
Basically, the supreme courts of both
Michigan and Nevada suggest that an unconstitutional act
should be treated as if it had never been passed and thus, "no
subsequent adoption of an amendment to the constitution,
authorizing the legislature to [pass such an act] ...would have
the effect to infuse life into a thing that never had any
existence.' 7
If, indeed, "the statute was in conflict with the constitution
as it stood at the time of the passage of the law, the subsequent
change in the constitution, authorizing such legislation, would
not validate it." ' As the United States Supreme Court has
explained, "An after-acquired power cannot ex proprio vigore
validate a statute void when enacted."' Thus, if in fact the
Hawaii Legislature had been precluded from reserving
marriage for different-sex couples before the adoption of the
recent amendment, then any such marital exclusion would
have been void and would have required reenactment after the
amendment's adoption to have the force of law.
Suppose that the situation described above is a little
different. A state legislature enacts a law that does not violate
the state constitution but, instead, violates the Commerce
Clause and, thus, is void. However, Congress subsequently
44. Seneca Mining Co. v. Secretary of State, 47 N.W. 25, 26 (Mich. 1890)
(emphasis added).
45. State ex rel. Stevenson v. Tufly, 22 P. 1054, 1054 (Nev. 1890).
46. Id.
47. Id.
48. Comstock Mill & Mining Co. v. Allen, 31 P. 434, 435 (Nev. 1892).
49. Newberry v. United States, 256 U.S. 232, 254 (1921).
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[Vol. 41
acts to remove the bar to such legislation. The question would
be whether the legislation would have to be re-enacted once
that bar had been removed or whether, instead, the legislation
would have been retroactively validated when Congress acted
to permit such legislation. The West Virginia Supreme Court
suggested that the "removal of the [Commerce Clause]
limitation by the act of Congress ...[would] not convert it
[the statute which, when enacted, violated that clause] into a
valid statute, nor put life or efficacy into it."5" The court
explained that a "void statute can be made effective only by
re-enactment"51 and, unless this had occurred, the statute
would not be valid.
The position above might seem to suggest that statutes
50. State v. Miller, 66 S.E. 522, 523 (W.Va. 1909).
51. Id.
Prior to the act of Congress known as the "Wilson Act," passed August
8, 1890 (chapter 728, 26 Stat. 313 [U. S. Comp. St. 1901, p. 3177]),
section 1 of chapter 32, of the Code of 1899 (Code 1906, § 913), did not
inhibit soliciting orders for liquors in this state, as the basis of sales to
be consummated in, and shipments to be made from, places in other
states. If the legislature intended the statute to have such scope and
effect, it was, to that extent, in conflict with federal interstate
commerce law, and therefore, void for want of power in the state
legislature to enforce it. This limitation upon the power of the state was
removed by the "Wilson Act," but the state statute had been previously
passed, at a time when, by reason of the limitation, it could not take
effect, and was void in so far as it contemplated such transactions. As
to them it was a dead, worthless thing. The removal of the limitation by
the act of Congress did not convert it into a valid statute nor put life or
efficacy into it. That could be done only by re-enactment by the state
legislature, and, between 1890, the date of the removal of the limitation
upon the state's power, and 1897, the date of the decision of the
Lichtenstein Case, this had not been done. A void statute can be made
effective only by re-enactment.
Id.
52. See id.; see also Grayson-Robinson Stores, Inc. v. Oneida, 75 S.E.2d 161
(Ga. 1953).
Since Georgia's Fair Trade Act was contrary to and inconsistent with
the terms of the Sherman Act before it was amended by the
Miller-Tydings Act and the McGuire Act, it offended the supremacy
clause as well as the commerce clause of the Federal Constitution, and
our Constitution of 1945 by article 1, section 4, paragraph 1, declares
that legislative acts which violate the Constitution of the United States
are void and the judiciary shall so declare them. Code (Ann.) § 2-402.
The time with reference to which the constitutionality of an act is to be
determined is the date of its passage by the enacting body [citing Jones
v. McCaskill, 37 S.E. 724 (1900)]; and if it is unconstitutional then, it is
forever void.
Id. at 163 (citing Christian v. Moreland, 45 S.E.2d 201 (1947)).
20001
BAEHR MYSTERIES
cannot be retroactively validated by constitutional
amendment, since at the time of their passage they were void
and of no legal effect.53 Yet, courts have rejected the approach
that amendments cannot validate an invalid statute, instead
merely insisting that certain steps must be taken if the
amendment is to have that effect. 4 The Supreme Court of
Alabama explained that "there is no reason why a
constitutional amendment cannot by the use of express and
clear terms validate and confirm an act of the legislature
previously enacted but invalid on account of a failure to
Thus, a
observe provisions of the State Constitution."'
constitutional amendment can validate a previously void law
as long as that desired effect is clearly and expressly stated.56
The requirement that the desired effect be clearly and
expressly stated is not taken lightly. An amendment that
grants a legislature new powers but does not also expressly
validate and confirm a previously existing law will not
resurrect that law.57 As the California Supreme Court
explained, to construe a power-conferring amendment" as
validating a previously invalid law would make the
amendment have "the effect of enacting [a] law[ instead of
merely authorizing the legislature to do so." The California
court noted that there is a strong presumption against
53. See Plave, supra note 22, at 114 ("Under this [void ab initiol theory, a
statute held unconstitutional is considered void in its entirety and inoperative as
if it had no existence from the time of its enactment.").
54. See William Michael Treanor & Gene B. Sperling, Prospective Overruling
and the Revival of 'Unconstitutional"Statutes, 93 COLUM. L. REV. 1902 (1993).
[Wlhen a constitutional amendment is passed that permits the
legislature to adopt a statute that it could not previously adopt, the
case law has consistently indicated that-unless the amendment is
intended to be retroactive-a statute that was unconstitutional prior to
the amendment will be enforceable only if it is repassed after the
amendment is ratified.
Id. at 1934.
55. Bonds v. State Dep't of Revenue, 49 So. 2d 280, 282 (Ala. 1950); see also
State v. Yothers, 659 A.2d 514, 520 (N.J. 1995) ("Constitutional amendments can
validate previously unconstitutional statutes if there is a clear intent to do so.").
56. See Treanor & Sperling, supra note 54, at 1918 ("[Clonstitutional
amendments have been held not to validate statutes passed prior to the
amendment's ratification (unless they were intended to do so).").
57. See, e.g., Yothers, 659 A.2d at 520 (N.J. 1995) ("The purpose of placing the
amendment before the voters was to remove the constitutional impediment, it did
not in itself amount to legislative action amending the existing statute.").
58. See infra notes 63-69 and accompanying text (discussing powerconferring laws).
59. Banaz v. Smith, 133 Cal. 102, 104 (1901).
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construing a power-conferring amendment as validating a
previously invalid statute, "and such effect will not be given to
[the amendment] unless [that effect] is expressly so provided."0
Thus, while it is possible to validate laws via constitutional
amendment, there is a strong presumption against retroactive
validation which, at least as a general matter, can only be
overcome by express language to that effect.61
C. The Hawaii ConstitutionalAmendment
To determine whether the Hawaii amendment
incorporated language which was sufficiently clear to justify
overcoming the presumption against retroactive application,
it will be necessary to examine the text of the amendment
itself, which reads, "The legislature shall have the power to
reserve marriage to opposite-sex couples."62 It should be clear
that none of the language in the amendment expressly and
unambiguously validates any statute that had been enacted
prior to the amendment's passage. Indeed, none of the
language in the amendment even addresses a prior statute. A
plain reading of the amendment suggests that it is powerconferring rather than statute-validating and, thus, one
should not construe it as doing the latter.
In The Concept of Law,63 H. L. A. Hart distinguishes
between two types of rules: those that impose duties and
those that confer powers.64 He explains, "Under rules of the
one type, which may well be considered the basic or primary
type, human beings are required to do or abstain from certain
actions, whether they wish to or not."6 In contrast, rules of
the other type "provide that human beings may by doing or
saying certain things introduce new rules of the primary type,
extinguish or modify old ones, or in various ways determine
their incidence or control their operation."6 Rules of the
former type impose duties, whereas rules of the latter type
confer powers, public or private.
60.
61.
section
62.
63.
64.
65.
66.
67.
Id.
But see infra notes 77-93 and accompanying text (discussing different
of the Hawaii Constitution).
Baehr v. Miike, 1999 Haw. LEXIS 391, at *5.
H.L.A. HART, THE CONCEPT OF LAW (1961).
See id. at 79.
Id. at 78-79.
Id. at 79.
See id.
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The power-conferring rules are divided into those that
"confer[] legal powers to adjudicate or legislate (public
powers)" 8 and those which "create or vary legal relations
(private powers)." 9 Consider a state statute that regulates
who may marry whom. The statute would have been passed
pursuant to the legislature's power to enact marital
regulations and would affect the power of private citizens to
enter into the marriage relation.
The Hawaii amendment on its face is power-conferringthe legislature has been given the power to reserve marriage
for different-sex couples. Were the legislature to choose to
exercise its power acquired by virtue of that amendment, it
would thereby restrict the power of private citizens to create
a particular legal relation (marriage) with a same-sex
partner. However, precisely because power-conferring laws
are of a different type than substantive laws, granting a
legislature a power would not even speak to whether that
power would be exercised."
It might be thought that it would not make any
difference whether the Hawaii constitutional amendment is
power-conferring or, in addition, retroactively validating,
since the legislature would simply reenact the relevant
legislation should the court hold that the reenactment is
necessary.7 One should note, however, that subsequent to
the passage of the amendment, the legislature failed to pass
legislation reserving marriage for different-sex couples,
notwithstanding the introduction of bills to that effect in the
appropriate committees. 2
As a general matter there is good reason, both
theoretically and practically, to require the reenactment of
68. Id. at 77.
69. HART, supra note 63, at 77.
70. See Bartlett II, supra note 7, at 587 ("[Bly granting the legislature the
'power' to regulate marriage in a particular way, it seems to call upon the
legislature to take action. The amendment does not insist that the legislature
limit marriage to opposite-sex couples, it merely grants them the power to do so.
The amendment, thus, contemplates legislative action.").
71. Cf infra notes 172-73 and accompanying text (suggesting that even
more unwelcome laws might have been passed had the legislature been forced
to reenact the statute in order for it to become law).
72. See Lambdalegal.org, Report on Senate Bill 321 and House Bill 775
9,
2000)
<http://www.lambdalegal.org/cgi(visited
Sept.
bin/pages/states/record?record=ll> (Senate Bill 321 and House Bill 775, each
restricting the right to marry, failed to advance out of committee).
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statutes once the legislature has been given the power to pass
particular legislation. For example, the political alliances
might have shifted since the passage of the previous statute,
and the statute might not be reenacted. 3 Or, even if it were,
other concessions might have been made to secure passage of
the legislation." Thus, as a matter of the settled law and of
general public policy, amendments will not retroactively
validate statutes passed prior to the amendment's passage
unless there is explicit language to that effect. 5
III. THE SPECIAL HAWAII CONSTITUTIONAL PROVISION
While the general jurisprudence regarding retroactive
validation of statutes is clear, it might be argued that there is
something special about the Hawaii Constitution that makes
the general jurisprudence inapplicable to how this
amendment in particular should be interpreted.7 ' Article 18,
section 9, of the Hawaii Constitution reads, "All laws in force
at the time amendments to this constitution take effect that
73. See Plave, supra note 22, at 112-13 (pointing out that constitutional
protections of abortion are becoming less robust but that if "states with restrictive
abortion statutes must reenact those statutes in order to enforce them,... many
state legislatures today would face unprecedented battles if they attempted to
gather enough constituent support to reenact statutes restricting the availability
of abortion.").
74. Compare Haw. Rev. Stat. Ann. 572C-6 ("Unless otherwise expressly
provided by law, reciprocal beneficiaries shall not have the same rights and
obligations under the law that are conferred through marriage under chapter
572.") with the bill that has passed the Vermont House of Representatives and
Senate that was eventually signed into law. See 1999 VT H.B. 847. According to
that bill, same-sex couples who meet the relevant definition, see 1999 VT H.B.
847 §§ 1202, 1203, "shall have all the same benefits, protections and
responsibilitiesunder law, whether they derive from statute, administrative or
court rule, policy, common law or any other source of civil law, as are granted to
spouses in a marriage." See id. § 1204(a).
75. See Earl T. Crawford, The Legislative Status of an Unconstitutional
Statute, 49 MICH. L. REV. 645, 654 (1951).
[Ilt is difficult to see how the ratification of a purely permissive
constitutional amendment can give the prior invalid statute effect if its
invalidity was due to a lack of constitutional authority on the part of
the legislature to enact such a law in the first instance. Statutes
obviously owe their existence to legislative action. Without the
authority to enact a particular law, how can it come into being? The
subsequent grant of the constitutional power to pass the particular
statute previously prohibited would seem incapable of giving a statute,
enacted without authority, effect without legislative re-enactment.
76. See Defendant-Appellant's Supplemental Brief at Part II, § A, Baehr v.
Miike, 1999 Haw. LEXIS 391 (No. 20371) (suggesting that art. 18, section 9 of
the Hawaii Constitution requires that the statute be held constitutional).
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BAEHR MYSTERIES
177
are not inconsistent with the constitution as amended shall
remain in force, mutatis mutandis, until they expire by their
own limitation or are amended or repealed by the
legislature."77 This section might be thought to alter the
standard retroactivity presumptions in Hawaii.
A. Two Different ProvisionInterpretations
Article 18, section 9 is not clear on its face and so must be
construed. One interpretation is that the provision simply
says that whichever statutes are consistent with the amended
constitution will be enforceable until they either expire or are
repealed.7 ' However, if that was the legislature's intention,
the section could easily have read, "All laws that are not
inconsistent with the constitution as amended shall be in
force until they expire by their own limitation or are amended
or repealed by the legislature." Thus, were the section meant
to be a retroactive validation provision, there would have
been no need to have limited the laws to which the section
would be applied to those that were "in force at the time
amendments to the constitution take effect."79 Indeed, by
suggesting that those already in effect shall remain in force,
the provision is saying that those laws that were valid would
remain valid rather than that even those that had been
invalid would now become valid.
An interpretation that better accounts for all of the
provision's language is the following: a statute will remain
good law if it was constitutional before the adoption of the
amendment (i.e., was in force prior to the amendment's
adoption) and, in addition, is consistent with the constitution
even after the amendment's adoption. The reference to those
laws in force at the time of the amendment's adoption limits
the laws that will be viewed as affected by this section.
Basically, this section suggests that the laws that will be
valid after an amendment's adoption must have been valid
before the amendment's adoption and must be consistent
with the constitution as newly amended.
Article 18, section 9 of the current Hawaii Constitution
77. HAW. CONST. art. XVIII, § 9.
78. See supra note 76 (suggesting this interpretation).
79. There are other reasons to think that even if so interpreted this would
not be an effective retroactive validation provision. See infra notes 80-93 and
accompanying text.
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was based on section 15 of the Admission Act,"0 which reads,
All Territorial laws in force in the Territory of Hawaii at
the time of its admission into the Union shall continue in
force in the State of Hawaii, except as modified or changed
by this Act or by the constitution of the State, and shall be
subject to repeal or amendment by the Legislature of the
State of Hawaii ....
81
The latter act was passed to secure the continuity of laws.
The difficulty that the Admission Act was intended to solve
was described by the Hawaii Supreme Court in In re Island
Airlines, Inc.,82 namely, that "upon admission of a State, all of
the Territorial laws are abrogated except as continued in force
by competent authority."'
The Admission Act guaranteed
consistency and continuity-those laws in effect before Hawaii
became a state would continue after Hawaii became a state as
long as those laws did not violate constitutional guarantees.
Article 18, section 9 is also intended to preserve
consistency-its title is "Continuity of Laws.'4
However,
consistency and continuity are double-edged-they include the
laws that would continue to exist and also exclude those that
might otherwise have been thought to spring into existence.
Thus, on the interpretation offered here, the section was not
intended to retroactively validate those statutes in accord with
new constitutional amendments; rather, it was merely
intended to make clear that statutes valid prior to the
amendment which were not invalidated by that amendment
would remain good law.
Case law supports the interpretation offered here. In 1960,
in G.E.M. Sundries Co., Inc. v. Johnson and Johnson, Inc.,"
the Ninth Circuit Court of Appeals had to interpret whether a
Hawaii statute precluded by an Act of Congress could be
construed as "in force"86 at the time Hawaii became a state in
19597 and thus, should be included within those laws covered
80. See HAW. CONST. art. XVIII, § 9.
81. HAW.Admission Act § 15 (1959).
82. 361 P.2d 390 (Haw. 1961).
83. Id. at 395 (citing Benner v. Porter, 50 U.S. 235 (1850)).
84. See HAW. CONST. art. XVIII, § 9.
85. 283 F.2d 86 (9th Cir. 1960).
86. See HAw. Admission Act § 15 (1959).
87. See Hilary Benson Gangnes & Christopher P. McKenzie, Does the Death
on the High Seas Act Apply to InterislandHawaii Flights? 6 U.S.F. MAR. L.J.
533, 537 (1994) (Hawaii was admitted to the Union in 1959).
2000]
BAEHR MYSTERIES
by the Admissions Act. The court made clear that the statute
was not "in effect" as a result of its initial passage because the
enactment at that time was in violation of federal law.88
The court's analysis is important to consider. The Hawaii
statute was held not to be in effect because it had violated
federal law, not because it had already been declared invalid
by a court. Thus, an act that cannot be enacted because of
federal or, perhaps, state constitutional guarantees should not
be considered "in effect," even if it has not yet been struck down
by a court. The only reason that the statute at issue in G.E.M.
Sundries was considered good law was that it had been
reenacted after the bar to its passage had been lifted.89
It might be thought that G.E.M. Sundries was an obscure
case that might have escaped the notice of those writing article
18, section 9. Yet, this is not a plausible claim, since article 18,
section 9 lists the Admissions Act, section 15, as a cross
reference, and the case notes list G.E.M. Sundries in the
discussion of the Admission Act, section 15.90
The Admissions Act uses the same "in force" language as
article 18, section 9, and, thus, one might plausibly interpret
both to include and exclude the same kinds of cases. Indeed,
precisely because the notes refer to G.E.M. Sundries, it is
plausible to believe that the intention of the drafters was that
the "in effect" language be construed as it was in G.E.M.
Sundries. As that case illustrates,9 however, a statute should
not be described as "in force" if it was unconstitutional and
void,9" even if a court had not yet recognized that it was void.93
Thus, the portion of the statute restricting marriage to
different-sex couples could not be described as "in force" if it
violated constitutional guarantees and thus would not be
88. See G.E.M. Sundries, 283 F.2d at 89 n.2.
89. See id. at 89-90.
90. The first case note suggested that a statute invalid under the Sherman
Act at the time of statehood would not have been continued in force by this
section. See Admissions Act § 15 case notes (1999).
91. See supra notes 85-89 and accompanying text.
92. The claim here is not that the entire marriage statute was void before
the passage of the amendment but that a particular part of it was
unconstitutional and hence void. For a discussion of the effect on the general
statute of a particular section that is unconstitutional and void, see discussion
infra Parts III.E., IV.A.
93. There was no suggestion in G.E.M. Sundries that the statute had been
found by a court to have been void between the time that it was first enacted
and the time that it was reenacted. Nonetheless, the court suggested that the
statute was not in force until reenacted.
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protected by article 18, section 9.
Suppose the legislature had not reenacted the statute at
issue in G.E.M. Sundries. The Ninth Circuit Court of Appeals
made clear that the Act would then not have been in effect, i.e.,
would not have been "in force." By the same token, a statute
that is unconstitutional when passed should be viewed as not
"in effect" or "in force," and thus should not be included within
those statutes protected by article 18, section 9, unless the
legislature enacted that statute after the bar to its passage had
been lifted. Article 18, section 9 of the Hawaiian Constitution
was designed to preserve continuity rather than to cause laws
that had been void and of no legal effect to suddenly spring
into being. Thus, although the section under discussion here
is open to different interpretations, the explanation that best
accounts for its language and the relevant case law suggests
that this provision does not make the Hawaii retroactivity
jurisprudence any different from the generally accepted
retroactivity jurisprudence. Thus, a void statute or portion
thereof should not be held retroactively validated absent an
express declaration to that effect.
B. ConstruingIntent
Hawaii jurisprudence follows the general retroactivity
jurisprudence94 both in that retroactive legislation is
permissible "unless it contravenes some constitutional
inhibition"9 5 and in that "retrospective laws are not favored and
all laws will be construed as prospective unless the language
employed imperatively requires a contrary construction."' The
Hawaii Supreme Court has recognized a "well-established rule
of construction forbidding the retrospective operation of
statutes in the absence of clearly expressed contrary legislative
intent." 7 Indeed, there is reason to think that Hawaii has an
especially strong public policy disfavoring retroactive
94. See discussion supra Parts III, III.A (suggesting that RAW. CONST. art.
XVIII, § 9 should not be read to the contrary).
95. Oleson v. Borthwick, 33 Haw. 766, 774 (1936). See also Gardens at W.
Maui Vacation Club v. County of Maui, 978 P.2d 772, 783 (Haw. 1999)
(retroactive application of statute constitutionally permissible because it "did
not infringe upon appellant's due process rights.").
96. Oleson, 33 Haw. at 774 (citing Auffm'ordt v. Rasin, 102 U.S. 620, 622
(1880); see also Robinson v. Bailey, 28 Haw. 462, 467 (1925)).
97. See Yamaguchi v. Queen's Med. Ctr., 648 P.2d 689, 693 (Haw. 1982)
(citing Clark v. Cassidy, 636 P.2d 1344, 1346 (Haw. 1981)).
2000]
BAEHR MYSTERIES
application, since "Hawaii law provides, by statute, that '[n]o
law has any retrospective operation, unless otherwise
expressed or obviously intended.'"98 While that law regarding
retrospective operation "is only a rule of statutory construction
and where the legislative intent may be ascertained, it is no
longer determinative,"9 ' the existence of the statute
nonetheless indicates that there is a strong policy against a
construction of retrospective operation, and that a substantial
burden must be overcome when seeking to establish that a
statute should be retroactively applied.
The Hawaii Supreme Court has made clear that where its
task "is to ascertain whether there is an expression or obvious
intendment that the [legislative] amendment was to have 'any
retrospective operation,"" 0 the court must begin "by examining
the language."'0 ' It was established long ago in Hawaii that
"no law will be construed to act retrospectively unless its
language imperatively requires such a construction." 1°
'
Yet,
the language of the amendment--"The legislature shall have
the power to reserve marriage to opposite-sex couples"-does
not even mention retroactive application much less require
that the amendment be given that construction.' 0 3
At issue here is the construction of an amendment to the
state constitution rather than a statute passed by the
legislature. Yet, at least two points must be made. First, the
same kinds of tools used in construing statutes may be used in
construing amendments.'
Second, it is especially important
in this kind of case to use the language of the amendment itself
to determine its meaning, °5 precisely because different
98. State v. Nakata, 878 P.2d 699, 709 (Haw. 1994) (citing HAW. REV. STAT.
§ 1-3 (1985)).
99. State v. Von Geldern, 638 P.2d 319, 322 (Haw. 1981).
100. Graham Constr. Supply, Inc. v. Schrader Constr., Inc., 632 P.2d 649, 653
(Haw. 1981).
101. Id.; see also Oleson, 33 Haw. at 775 ("In the final analysis it is the
intention of the legislature as manifested by the language employed in the Act
itself that leads to the solution of the question involved.").
102. Robinson v. Bailey, 28 Haw. 462, 467 (1925) (quoting Auffm'ordt, 102 U.S.
at 622 (1880)).
103. See Baehr v. Miike, 1999 Haw. LEXIS 391, at *10 n.4 (Ramil, J.,
concurring).
104. See McCarney v. Meier, 286 N.W.2d 780, 783 (N.D. 1979) ("Principles of
construction applicable to statutes are generally available to construction of the
Constitution.").
105. See Pelkey v. City of Fargo, 453 N.W.2d 801, 804 (N.D. 1990) ("The sole
object in construing a constitutional provision is to ascertain and give effect to
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[Vol. 41
interpretations of what it says will have been offered," 6 and it
will be impossible to tell which interpretations were heard or
accepted by the voters.
To determine what the voters had in mind when they
voted for the amendment, it simply will not do to consult the
legislative history to see what the legislators believed they
were doing when they passed a bill proposing that a bill be
placed on the ballot."°7 In the voting booth, the voter sees the
text of the amendment itself-the voter does not, for example,
see the differing opinions about whether the amendment, if
approved, would have retroactive effect.
Perhaps it would be thought too severe a restriction to
require that the amendment expressly incorporate retroactive
intent.' After all, if everyone received explanatory materials
in the mail making clear that the amendment would
retroactively validate a statute, then perhaps the relevant
intention could thereby be established.10
Even if the intention to retroactively validate a statute
could be constructively inferred when a mass mailing has
made that effect of the amendment clear, however, this would
not help establish that the Hawaii amendment should be
construed to have retroactively validated the portion of the
statute at issue here. The materials that Hawaiians received
the intention and purpose of the framers and the people who adopted it, and
such intention and purpose are to be found in and deduced from the language of
the constitution itself.") (citing Dawson v. Tobin, 24 N.W.2d 737, 738 (N.D.
1946)).
106. See, e.g., Gay Marriage Battle Isn't Over Yet, ASSOCIATED PRESS
NEWSWIRES, Jan. 24, 1999 ("Attorney General Margery Bronster and attorney
Dan Foley are at odds over whether the Legislature needs to pass a statute that
would define marriage as a union between a man and a woman.").
107. See Defendant-Appellant's Supplemental Brief at 16-17, Baehr v. Miike,
1999 Haw. LEXIS 391 (No. 20371).
108. But see Crawford, supra note 75, at 653 (suggesting that the amendment
must be legislative in scope if it is to affect the statute previously adjudged
unconstitutional).
This seems evident from the cases which hold that no additional
legislative action is required, for the constitutional amendment will be
found so worded that it will by virtue of its own language embody the
prior unconstitutional act and also be self-executing, or else it will
specifically ratify, validate or confirm the prior unconstitutional statute
or be at least curative or confirmatory in nature, so that the statute is
actually, or in effect, made a part of the constitutional amendment.
109. Even this might not suffice, since one still would have to assume, for
example, that the materials would actually have been both received in the
household and read.
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BAEHR MYSTERIES
in the mail suggested that the amendment was to have
prospective rather than retrospective application. Voting "yes"
on the proposed constitutional amendment was explained in
the following way:
A "yes" vote would add a new provision to the Constitution
that would give the Legislature the power to reserve
marriage to opposite-sex couples only. The Legislature
could then pass a rule that would limit marriage to a man
and a woman, overruling the recent Supreme Court
decision regarding same-sex couples." 1
This explanation suggests that the amendment would
confer a power on the Hawaii Legislature that it then could
exercise. It suggests in addition that the amendment would
not retroactively validate a previous statute, since there
would be no need to then pass a rule restricting marriage if
the amendment's adoption would have retroactively validated
that rule.
By the same token, the explanation of the effect of a "yes"
vote suggested that it was prospective rather than
retrospective. That explanation was:
People who want the proposed amendment to pass believe
the Legislature, and not the Supreme Court, should decide
who is eligible to marry in the State. If the proposed
amendment is adopted, then it will be clear that the
Legislature can legally reserve marriage for opposite-sex
couples. People in support of the proposed amendment
believe passing this amendment is an important step to
prohibit same-sex marriage in the State."'
Were the amendment to retroactively validate a statute,
the amendment's adoption would not merely be an important
step in prohibiting same-sex marriage-it would be all that
would be necessary. Thus, whether one considers the language
of the amendment itself, the official explanation of the
amendment, or even the explanation of its effect that had been
offered by its supporters, the amendment should be construed
as prospective only. When one considers in addition that there
is a presumption of prospectivity, it is difficult to see how the
Hawaii Supreme Court could have held otherwise.
110. Plaintiffs-Appellees' Supplemental Brief, Part II, Baehr v. Miike, 1999
Haw. LEXIS 391 (No. 20371) (describing materials put out by the Office of
Elections) (emphasis added).
111. Id. (emphasis added).
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C. Separationof Powers
Suppose that one took seriously what the legislators
believed they were doing when they proposed the amendment,
as reflected by what they approved and by what they said
when testifying about the bill."' The bill that was approved
was "an amendment to article I of the Constitution of the State
of Hawaii to clarify that the legislature has the power to
By offering a
reserve marriage to opposite-sex couples."'
clarification of the constitution, the legislature was offering its
own interpretationof the state constitution. Yet, passing such
a bill to establish the correct interpretation of the state
constitution is itself problematic-as the Hawaii Supreme
Court has made clear, "the courts, not the legislature, are the
ultimate interpreters of the Constitution."" 4 Insofar as this
was a clarification,i.e., an attempt to establish the meaning of
the constitution, it should have been struck down on
separation of powers grounds. As the Supreme Court of
Hawaii explained, "Under the separation of powers so
provided, each branch is coordinate with the other, and neither
may exercise the power vested in the other.""'
As Justice Cassidy stated in his De Mello dissent, "No one
can dispute that the cardinal tenet respecting the separation of
powers requires that the independence of the judicial branch of
the government in the exercise of its exclusive powers must be
kept inviolate from invasion by the legislative branch.""6
While separation of powers would not preclude, for example,
"the right and power of the legislature to hold hearings for the
purpose of eliciting facts so as to make a determination of
appropriate legislative action,""' 7 separation of powers would
preclude the legislature's making what amounted to a judicial
determination of the meaning of the state constitution.
Certainly, the legislature's describing the amendment as a
112. See supra note 107 (discussing the comments made be legislators about
the proposed bill).
113. 1997 Haw. Sess. Laws H.B. 117 § 2, at 1247 (emphasis added).
114. State v. Shak, 466 P.2d 422, 425 (Haw. 1970).
115. Maui County Council v. Thompson, 929 P.2d 1355, 1357 (Haw. 1997)
(quoting Akahane v. Fasi, 565 P.2d 552, 557 (Haw. 1977) (quoting City Council v.
Fasi, 467 P.2d 576, 578 (Haw. 1970)).
116. De Mello v. Fong, 37 Haw. 415, 430 (1946) (Cassidy, J., dissenting).
117. Kioke v. Board of Water Supply, City and County of Honolulu, 352 P.2d
835, 843 (Haw. 1960) (rejecting De Mello to the extent that it might be thought to
hold otherwise).
20001
BAEHR MYSTERIES
185
clarification need not be an interpretation of the state
constitution, since it might instead be a rhetorical move to
persuade voters that adopting the amendment would not
radically change the existing constitution. Because rhetorical
persuasion is not equivalent to constitutional interpretation,
the former would neither be viewed as a usurpation of the
court's role nor as a violation of separation of powers. In any
event, just as "the legislature's mere labeling of a criminal
offense as 'petty' does not necessarily make it so" 'because it
is "the judicial branch that independently determines whether
such a label is justified,""9 the legislature's labeling the
amendment as a "clarification" of the state constitution would
hardly make it so, since that would be something for the state
supreme court to decide.
The claim here of course is not that the legislature was
violating separation of powers by proposing an amendment to
the state constitution.
On the contrary, proposing an
amendment involved the exercise of a prescribed power to
change the constitution."'
Yet, precisely because the
legislature has the power to propose changes to the
constitution but does not have the power to establish its
meaning, the "clarification" language is best understood as an
attempt to persuade the populace to support a change rather
than as a definitive interpretation of the pre-amended
constitution.
D. Other Laws MilitatingAgainst Retroactive Application
Two other Hawaii laws should have helped convince the
court that the amendment should not have been construed as
retroactively validating a portion of the marriage statute.
Hawaii law states that the "repeal of any law shall not revive
any other law which has been repealed, unless it is clearly
expressed."'
This law clearly expresses the public policy
against revival of statutes, absent clear language mandating
such a revival.
Suppose that Hawaii had a law reserving marriage for
118. State v. Nakata, 878 P.2d 699, 718 (Haw. 1994).
119. Id.
120. See HAW. CONST. art. 17, § 1 ("Revisions of or amendments to this
constitution may be proposed by constitutional convention or by the
legislature.").
121. HAW. REV. STAT. § 1-8 (1993).
186
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different-sex couples. Suppose further that this law was
repealed and a different law was passed prohibiting the
legislature from passing a statute reserving marriage for
different-sex couples. However, because of a change in the
composition of the legislature, the law prohibiting a same-sex
marriage ban was repealed. According to current Hawaii law,
the repeal of the law prohibiting a same-sex marriage ban
would not revive the former law reserving marriage for
different-sex couples. The new legislature would have to
reenact that law for it to be given effect.
Admittedly, the issue under discussion here is somewhat
different from the hypothetical posed above. Here, there was
no repeal of a law barring the legislature from reserving
marriage for different-sex couples. Rather, assuming for the
sake of argument that the constitution precluded the
legislature from reserving marriage for different-sex couples,
at issue here is a constitutional amendment that repealed the
previous constitutional bar prohibiting the legislature from
reserving marriage for different-sex couples. Yet, presumably,
just as the repeal of a statute does not revive a different
statute absent language to that effect, the repeal of a
constitutional provision does not revive a statute absent
express language to that effect.1
Another difference between the hypothetical posed above
and the situation in Hawaii is that the law reserving marriage
for different-sex couples was never repealed-rather, that
section of the law never existed because the constitution
Yet, ifa repealed statute cannot be
precluded its passage.
to that effect, then certainly a
express
language
revived absent
section that had been unconstitutional and void and, hence,
had never existed should not be considered "revived" absent
specific language to that effect." 4
A different Hawaii law makes even clearer that the
Hawaii court's ruling about retroactivity was in error. Hawaii
law regarding state constitutional amendments requires that
the "language and meaning of a constitutional amendment
122. See supra notes 44-61 and accompanying text (discussing amendments
and retroactive validation of statutes).
123. This assumes that the statute was unconstitutional according to the preamended constitution.
124. For a discussion of whether unconstitutional provisions can be revived,
see supra notes 44-56 and accompanying text.
20001
BAEHR MYSTERIES
shall be clear and it shall be neither misleading nor
deceptive."' 5 Given the official explanation of the amendment
sent to the voters, (that a "Yes" vote would mean that the
"Legislature could then pass a law that would limit marriage
to a man and a woman""6 ) an individual who wished the
legislature to have the power to reserve marriage for differentsex couples but did not wish the amendment to retroactively
validate a portion of the statute enacted prior to the
amendment's adoption would have been deceived into voting
for the amendment. The Hawaii court's construction of the
amendment makes the explanation of the amendment sent to
the voters a violation of state law. Thus, not only did such a
construction
ignore
the
standard
interpretation
presumptions,'27 but it cast the validity of the ballot into
question because voters had been misled about the effects of
their votes.'
E. What Happens When a Portionof a Statute is Void?
The discussion here is predicated upon an assumption
made by the Baehr court, namely, that the Hawaii Legislature
did not have the power to pass a statute reserving marriage for
different-sex couples prior to the passage of the recent
amendment. 9 If the legislature did not have that power, then
the provision reserving marriage for different-sex couples was
void. However, the legislature's not having had the power to
enact that particular provision would not void the entire
marriage statute.
The United States Supreme Court has long recognized
that marriage is "subject to the control of the legislature,"'
although the Court has also recognized that legislative
powers in this area are not unlimited"' since federal. 2 or
125. HAW. REV. STAT. § 11-118.5 (Supp. 1999).
126. See supratext accompanying note 110.
127. See supra notes 54-61 and accompanying text.
128. See Kahalekai v. Doi, 590 P.2d 543 (Haw. 1979) (holding that when the
electorate is not adequately informed of the substantive nature and effect of an
amendment, the amendment will be deemed to have failed ratification).
129. See Baehr, 1999 Haw. LEXIS 391, at *6 (the marriages statute was
validated, "whether or not in the past it was violative of the equal protection
clause").
130. Maynard v. Hill, 125 U.S. 190, 205 (1888).
131. See Loving v. Virginia, 388 U.S. 1, 7 (1967).
132. See id. (arguing that states are subject to the limitations imposed by the
Fourteenth Amendment).
SANTA CLARA LAW REVIEW
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state... constitutional guarantees might prohibit the
legislature's enactment of a particular marital regulation.
Consider a state that has enacted a marital statute that is
unconstitutional only in part, e.g., a statute that precludes
interracial marriage but does not otherwise offend
constitutional guarantees."' The question at hand is whether
the marital statute would have to be reenacted with the
unconstitutional provision excised or whether the statute
(minus the unconstitutional part) would be effective without
reenactment.
Several courts have addressed how a statute with one
unconstitutional provision should be construed. For example,
the Supreme Court of Indiana explained:
Where only a part of a legislative act violates the
Constitution and is judicially declared void, and the
remainder of the act is complete in itself and capable of
execution according to the legislative intent, and wholly
independent of that which is judicially determined to be
the remaining part of the act will be
unconstitutional,
13 5
sustained.
Thus, the marital statute would not need to be reenacted with
the unconstitutional part excised in order to be in effect.'
In another case, the Supreme Court of Montana explained
that:
[Wihere the lawmaking body has solemnly declared its
intention as to what shall be the law upon a subject
clearly within its constitutional power and authority,
which enactment would have become valid except for some
defect in the body of the act which could originally have
133. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), reconsiderationgranted in
part,875 P.2d 225 (Haw. 1993). A plurality of the Hawaii Supreme Court held
that the Hawaii marriage statute reserving marriage for different-sex couples
implicated equal protection guarantees of the state constitution. See id. at 64.
The court remanded the case to determine whether the statute was
unconstitutional. See id. at 68.
134. In Loving v. Virginia, 388 U.S. 1 (1967), the Court struck down antimiscegenation statutes.
135. Keane v. Remy, 168 N.E. 10, 14 (Ind. 1929) (citing State v. Barrett 87
N.E. 7 (Ind. 1909)).
136. See Crawford, supra note 30, at 656
Frequently, only a part of the legislative act will conflict with the
constitution and that part is clearly separable from the remainder of
the act. Where this is the situation, there is ample authority for
amending the act and making it effective by removing the offending
provision without re-enactment of the law in its entirety.
2000]
BAEHR MYSTERIES
189
been cured, the roots and the "main stock" are still alive
and are grounded in fertile constitutional soil, and all that
is necessary to cause the tree to flourish is scientific
pruning or grafting, dependent upon whether the
Legislature has said too much or too little. 37
Here, all that would be necessary would be to "prune" the
marital statute of its offending provision-the remainder
would be good law and would not require reenactment to be
in effect.
Finally, the Supreme Judicial Court of Massachusetts
explained that:
[I]n the consideration of a statute where one part is
unconstitutional, which is in its nature separable from
other parts so that they well may stand independently of
it, and there is no such connection between the valid and
the invalid parts that the general court would not be
expected to enact the valid part without the other, the
not in conflict with the Constitution
parts of the statute
138
will be held good.
Thus, where the offending part is easily separable from
the remainder, the court will view the rest of the statute as
valid. Of course, if this were a different case where there
were "so many far reaching unconstitutional provisions that
it could not be reasonably inferred that the Legislature would
have passed the act with those provisions omitted,""9 then
there might be a different result.
Here, were the offending provision "pruned," the court
would presumably hold the Hawaii marriage statute to be in
effect. In other words, the Hawaii Revised Statutes Section
572-1 would be in force except insofar as it specified that "the
marriage contract... shall be only between a man and a
woman." 4 0 Thus, while Hawaii still would have had a
marriage statute in effect even assuming that the provision
couples
was
for
different-sex
reserving
marriage
unconstitutional, the constitutionally offensive provision
would be deemed to be void and to have no legal effect.
Once the Hawaii Legislature had the power to pass a
statute reserving marriage for different-sex couples, the
137. State v. Silver Bow Ref. Co. 252 P. 301, 304 (Mont. 1926).
138. Lawton Spinning Co. v. Commonwealth, 121 N.E. 518, 520 (Mass. 1919).
139. Clay v. Buchanan, 36 S.W.2d 91, 92 (Tenn. 1931).
140. HAw.REV. STAT. § 572-1 (Supp. 1999).
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legislature could then amend the existing statute to include
that provision. However, because the previous statute would
have existed as pruned, the legislature would need to reenact
the provision restricting marriage if that restriction was to
have the force of law.
Suppose that the Hawaii electorate had wanted to give the
legislature the power to reserve marriage for different-sex
couples but had not wanted to retroactively validate the
marriage statute. What would the amendment have said? It
might have said, "The legislature shall have the power to
reserve marriage to opposite-sex couples, but this amendment
shall not be construed to retroactively validate any statutes
passed prior to the effective date of this amendment."
Certainly, this would have made it even clearer to the
electorate that the amendment was not to have any retroactive
effect.
Yet, the issue before the court was not how the
amendment could have been worded to make very clear to the
electorate that the amendment would not retroactively
validate a previous statute. Rather, the issue before the court
was how to construe the amendment, given the standard
presumption of non-retroactivity. The court's holding turned
the presumption on its head. It would be as if the court had
said that the amendment retroactively validated the statute
reserving marriage for different-sex couples because the
amendment did not include this extra provision expressly
denying that the amendment was retroactive, whereas the
established jurisprudence requires that the amendment not
have a retroactive validating effect absent express language to
the contrary.
The Hawaii Supreme Court's holding that the amendment
retroactively validated the statute was especially surprising in
light of the recognized test of construction in this context. The
amendment states, "The legislature shall have the power to
reserve marriage to opposite-sex couples.""' The recognized
test for retroactive validation is that the language must clearly
require that result. Yet, here, to argue that the amendment
retroactively validates the statute requires that non-textual
elements (e.g., legislators' claims about whether it would have
that effect) be allowed to trump the plain language of the
141. HAw. CONST. art. I, § 23.
2000]
BAEHR MYSTERIES
amendment. To suggest that "[t]he legislature shall have the
power" imperatively requires or even suggests a construction of
retroactive validation is, at the very least, "a creative reading
of the plain language." " 2
The Hawaii Constitution, related statutes, and the
established case law suggest that the court's construction of
the amendment as retroactively validating the Hawaii
marriage statute had no basis in the jurisprudence. The
statutory requirements that the constitutional question be
clear and that the electorate not be deceived, coupled with the
complete failure to even mention retroactivity in the
amendment, suggest that either the ballot question was itself
defective or that the court's holding was in error.
IV. BAEHR SILVER LININGS
Supreme
Court's
Baehr decision
The
Hawaii
43
However, there are some
disappointed many people.'
positive aspects of the decision that should not be overlooked.
Indeed, these aspects may have more far-reaching
consequences than the court's decision that the amendment
retroactively validated the marriage statute.
A. Reconciling ConstitutionalProvisions
When examining the Hawaii constitutional amendment,
a court might have been interested in a number of issues: (1)
whether the amendment retroactively validated a statute
passed prior to the amendment's adoption; (2) whether the
amendment's validating such a statute would violate
constitutional guarantees; or (3) how the amendment should
be interpreted if it seemed to contradict a different part of the
state constitution. The Baehr court purportedly addressed
the first issue, although its analysis really addressed the
third issue.
A court interested in whether an amendment
retroactively validated a statute would carefully examine the
amendment at issue to see whether its language clearly
142. See Interstate Commerce Comm'n v. Brotherhood of Locomotive Eng'rs,
482 U.S. 270, 294 (1987) (Stevens, J., concurring).
143. See, e.g., Jean Christensen, Hawaii Supreme Court Says Gay-Marriage
Challenge is Moot, ASSOCIATED PRESS NEWSWIRES, Dec. 10, 1999 (describing
some adverse reactions to the decision).
192
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Had the Baehr court
required retroactive validation.1 4
performed this careful examination, it would have decided
that the amendment did not retroactively validate the
statute-not only did the language of the amendment not
require retroactive application, but it also could not plausibly
even support such an interpretation.1 4
While ostensibly addressing retrospective validation, the
Baehr court actually addressed a different issue, namely, how
it should read potentially conflicting provisions of a
constitution. To see why the Baehr court was in fact
addressing this issue, a little background is required.
The language of the Hawaii marriage statute reads, "In
order to make valid the marriage contract, which shall be
only between a man and a woman, it shall be necessary
that... ,,14' The question for the Baehr court was how to
reconcile the existence of this statute, which clearly classifies
on the basis of sex since it defines who may marry on that
barring
provision
constitutional
the
with
basis,4 7
discrimination on the basis of sex. The court looked at the
amendment specifically giving the legislature the power to
reserve marriage for different-sex couples and concluded that
the:
marriage amendment validated H.R.S. § 572-1 by taking
the statute out of the ambit of the equal protection clause
of the Hawaii Constitution, at least insofar as the statute,
both on its face and as applied, purported to limit access to
the marital status to opposite sex couples. Accordingly,
whether or not in the past it was violative of the equal
protection clause in the forgoing respect, H.R.S. § 572-1 no
longer is. 148
Basically, the court looked at the amendment, which
specifically permitted the legislature to reserve marriage for
different-sex couples, and the state constitution, which
explicitly prohibits discrimination on the basis of sex,149 and
144. See supra notes 54-61 and accompanying text.
145. See supra note 142 and accompanying text (suggesting that this is a
very 'creative" reading).
146. HAW. REV. STAT. § 572-1 (Supp. 1999).
147. See Baehr v. Miike, 1999 Haw. LEXIS 391, at *6 n.1 ("[Riudimentary
principles of statutory construction renders manifest the fact that, by its plain
language, HRS § 572-1 restricts the marital relation to a male and a female.")
(citing Baehr v. Lewin, 852 P.2d 44, 60 (1993)).
148. Id.
149. See HAw.CONST. art. I, § 3 ("Equality of rights under the law shall not
2000]
BAEHR MYSTERIES
offered a way to reconcile the two provisions.
Consider how a court might handle two conflicting
provisions of a constitution. It might say that one of the
contradictory provisions is null and void because it
Or, it might suggest
contravenes certain basic principles.'
that the provisions must be interpreted to be consistent if at
all possible. As the Pennsylvania Supreme Court pointed out,
"because the Constitution is an integrated whole, effect must
be given to all of its provisions whenever possible." 5' The
North Dakota Supreme Court has made a similar point." 2
The Hawaii Supreme Court in its Baehr opinion followed
the generally accepted jurisprudence with respect to how to
interpret apparently conflicting constitutional provisions,
namely, reconcile them if at all possible. The only difficulty
with that approach was that it had very little to do with the
issue that the court was allegedly deciding, namely, whether
the Hawaii amendment retroactively validated a portion of
the Hawaii marriage statute.
Suppose that events had occurred much differently. The
amendment was adopted and the legislature then enacted
legislation reserving marriage for different-sex couples. If
that legislation was then challenged, the court would have to
decide whether the provision authorizing the legislature to
reserve marriage for different-sex couples could be reconciled
with the provision prohibiting discrimination on the basis of
sex. The court might in that case have construed the two
provisions as consistent and issued the ruling that in fact was
offered in Baehr.
Certainly, if the Baehr court had held that the two
provisions were inconsistent and, further, that the provision
authorizing the legislature to reserve marriage for different-
be denied or abridged by the State on account of sex.").
150. See Walter F. Murphy, Slaughter-House, Civil Rights, and Limits on
Constitutional Change, 32 AM. J. JuRis. 1, 13-14 (1987) (discussing an opinion
issued by the West German Constitutional Court-The Southwest Case, 1
BVerfGE 14 (1951)).
151. Cavanaugh v. Davis, 440 A.2d 1380, 1382 (Pa. 1982) (citing Cali v.
Philadelphia, 177 A.2d 824 (1962)).
152. See Pelkey v. City of Fargo, 453 N.W.2d 801, 804 (N.D. 1990) ("In
construing constitutional provisions we generally apply principles of statutory
construction, giving effect and meaning to every provision and reconciling, if
possible, apparently inconsistent provisions." (citing McCarney v. Meier, 286
N.W.2d 780 (N.D. 1979)).
SANTA CLARA LAW REVIEW
[Vol. 41
sex couples was somehow unconstitutional, 1 then the court
would not have needed to address whether the constitutional
amendment retroactively validated a portion of the marriage
statute, since the amendment itself would then have been
void."
However, because the court found that the
constitutional provisions were consistent, it still had to
address whether the amendment retroactively validated part
of the statute.
The Baehr court never explicitly stated that the
amendment retroactively validated the portion of the statute
reserving marriage for different-sex couples. However, if
indeed the equal protection guarantees of the pre-amended
constitution precluded the legislature from restricting
marriage in that way, and if indeed that would mean that the
Hawaii marriage statute pruned of the offending provision
would be in effect, then the provision would have to have been
retroactively validated in order for it to have existed so that it
could be taken "out of the ambit of the equal protection
clause." 55 If that voided provision had not been retroactively
validated and thus had been nonexistent, there would not yet
have been anything that needed to be taken out of the
clause's ambit.
It is simply unclear whether the Baehr court understood
the implications of its own decision, because the court simply
refused to address retroactivity or even the proper
construction of article 18, section 9."' At some future point,
however, the court may have to explain whether Hawaii's
retroactivity jurisprudence is non-standard or, perhaps,
whether the court must invalidate the amendment ballot
because it deceived the voters with respect to whether the
amendment would retroactively validate Hawaii's marriage
statute.
153. See supra note 150 and accompanying text (discussing the nullification
of one constitutional provision in light of another).
154. A separate question would be whether the court would address the
broader question of the provision's constitutionality rather than the narrow
question of its retroactivity, especially if a holding that it was prospective only
would have allowed the court to avoid the more thorny question of whether a
constitutional provision could be held unconstitutional because, for example, it
violated the spirit of the whole. Needless to say, however, this is all speculative
since the court found that the provisions could be reconciled.
155. See Baehr, 1999 Haw. LEXIS 391, at *6.
156. See supra note 148 and accompanying text (offering the court's brief
analysis).
2000]
BAEHR MYSTERIES
B. Equal Protection
A different way to reconcile the Equal Protection Clause
of the Hawaii Constitution and the specific provision
permitting the legislature to reserve marriage for differentsex couples would be to deny that the Equal Protection
Clause precluded reserving marriage for different-sex
couples, either by asserting that such a classification involved
an orientation rather than a sex-based classification or by
holding that even if such a classification was sex-based, it
nonetheless did not offend constitutional guarantees. The
Hawaii Supreme Court chose neither,'57 and instead opted to
reconcile the provisions, suggesting that by removing the
marriage statute from the Equal Protection Clause's ambit,
the amendment created a narrow exception in the equal
protection jurisprudence.'
In his Baehr concurrence, Justice Ramil urged the court
to overrule its previous Baehr decision.5
He objected to the
Baehr plurality's use of "the plain meaning rule of statutory
construction," 6 ' arguing that "the trait on which H.R.S.
section 572-1 distinguishes applicants for marriage licenses is
not gender, but rather sexual orientation."''
Justice Ramil
offered the following hypothetical to illustrate his point:
[I]f a male plaintiff in this case somehow changed his
gender to become a woman, but remained homosexual
(i.e., lesbian), she would still be disadvantaged by the
prohibition on same-sex marriage inasmuch as she would
not be permitted to marry another woman. However, if
that same male plaintiff somehow changed his
homosexual orientation, he would not be disadvantaged by
H.R.S. § 572-1 inasmuch as he would be able to marry a
female. 62
Justice Ramil concluded that the statute therefore
"disadvantages homosexuals, whether male or female, on
account of their desire to enter into a marriage relationship
157. See Baehr, 1999 Haw. LEXIS 391, at *6 n.1.
158. See id. at *8 (Ramil, J., concurring) (for an online copy of the
concurrence see <http://www.Hawaii.gov/jud/20371con.htm> (visited Nov. 16,
2000)).
159.
160.
161.
162.
See id.
Id.
Id. n.1.
Id.
SANTA CLARA LAW REVIEW
[Vol. 41
with a person of the same sex.""'
Justice Ramil's hypothetical is unpersuasive because he so
severely limits the possibilities. Suppose, for example, that the
male plaintiff changed his orientation but not his sex. Suppose
further that he nonetheless wanted to marry another male so
that he could receive particular benefits from the state. The
state would deny the marriage license, heterosexual
orientation notwithstanding. Or, suppose that the plaintiff
neither changed his sex nor his orientation but nonetheless
wanted to marry a female so that he could receive the state
benefits referred to above. In this case, he would be able to
marry, same-sex orientation notwithstanding.'
Thus, the
of
sex,
not
orientation.
statute discriminates on the basis
Justice Ramil's example obscures the effect of the statute
because the individual in his hypothetical somehow changed
both his sex (from male to female) and his orientation (from
male to female). Yet, the way to determine whether the basis
of the classification at issue is sex rather than orientation
would be to hold one of those factors constant or, perhaps, to
consider what would happen if the individual sought to marry
someone to whom he or she was not sexually attracted. When
these possibilities are considered, the meaning and effect of the
statute are clarified.
The Baehr court reaffirmed that "rudimentary principles
of statutory construction renders manifest the fact that, by its
plain language, H.R.S. section 572-1 restricts the marital
relation to a male and a female." 6 ' The separate question of
whether that facial classification violated equal protection
guarantees, no longer had to be addressed because the new
amendment took "the statute out of the ambit of the equal
protection clause of the Hawaii Constitution.""'6 Thus, the
court suggested that the marriage statute now occupied a safe
haven which rendered state equal protection guarantees
inapplicable (at least with respect to the restriction at issue).
Of course, that says nothing about federal equal protection
guarantees, and if rudimentary principles of statutory
construction establish that the marriage statute classifies on
163. Baehr v. Miike, 1999 Haw. LEXIS 391, at *8 n.1 (Ramil, J., concurring).
164. See id. at *6 n.1 (noting "the fact that HRS 572-1 obviously does not
forbid a person from marrying a person of the opposite sex.").
165. Id. (citing Baehr v. Lewin, 852 P.2d 44, 60 (1993)).
166. Id. at *6.
20001
BAEHR MYSTERIES
the basis of sex, statutes reserving marriage for different-sex
couples would seem vulnerable on federal constitutional
grounds.167
Not only did the court reaffirm that rudimentary
principles of statutory construction reveal that same-sex
marriage bans classify on the basis of sex but the court also
explained that "the framers of the 1978 Hawaii Constitution,
sitting as a committee of the whole, expressly declared their
intention that a proscription against discrimination based on
sexual orientation be subsumed within the clause's prohibition
against discrimination on the basis of sex."'68 Thus, even if
Justice Ramil was correct that the statute discriminated on the
basis of orientation rather than sex, the statute still would
have been subject to equal protection scrutiny but for the
adoption of the constitutionalamendment.
In one footnote,'6 9 the court did several things. First, it
reinforced its previous holding that a statute allowing a man to
marry a woman but not a man and allowing a woman to marry
a man but not a woman classifies on the basis of sex.'
Second,
the court made clear that, at least in Hawaii, discrimination on
the basis of orientation is subject to the same kind of scrutiny
as is discrimination on the basis of sex and, indeed, is
subsumed within the latter kind of discrimination. 17 Thus,
other legislative classifications based on orientation will be
subjected to strict scrutiny in Hawaii.'
The court's having
made these points in its decision is worthy of note and praise.
C.
Recognition of Same-Sex MarriagesValidly Celebrated
Elsewhere
Currently, no state recognizes same-sex marriages, so it
is unclear what Hawaii would do were such marriages
recognized elsewhere and (1) a Hawaiian same-sex couple were
167. See MARK STRASSER, TuE CHALLENGE OF
FEDERALIST PRINCIPLES AND CONSTITUIONAL PROTECTION
SAME-SEX
MARRIAGE:
37 (1999).
168. Baehr, 1999 Haw. LEXIS 391, at *6. n.1 (citing Stand. Comm. Rep. No.
69, in 1 Proceedings of the Constitutional Convention of Hawai'i of 1978, at 675
(1980)).
169. The court discussed the different weaknesses in Justice Ramil's analysis
in a footnote. See id.
170. See id.
171. See id.
172. In Hawaii, classifications on the basis of sex are subjected to strict
scrutiny. See Baehr 1, 852 P.2d at 67.
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to go there to marry and then return home, or (2) a same-sex
couple validly married in that state were to move to Hawaii.
However, existing case law coupled with the legislature's
failure to make clear that such marriages will not be
recognized offer a basis for arguing that such marriages should
be recognized.'73
The current statute reserves marriage for different-sex
couples but does not specify whether same-sex marriages
Various
validly celebrated elsewhere will be recognized.'
states have made clear their intention to refuse to recognize
other
in
celebrated
validly
marriages
same-sex
similar
a
pass
to
failure
Hawaii's
Given
jurisdictions."'
173. See generally Mark Strasser, Judicial Good Faith and the Baehr
Essentials: On Giving Credit Where It's Due, 28 RUTGERS L.J. 313 (1997)
(arguing that same-sex marriages should be recognized after explicit legislative
declaration to the contrary).
174. See HAW. REV. STAT. § 572-1 (2000).
175. See, e.g., ARIZ. REV. STAT. § 25-112(A) (1999) ("Marriages valid by the
laws of the place where contracted are valid in this state, except marriages that
are void and prohibited by section 25-101."); ARIZ. REV. STAT. § 25-101(C) (1999)
("Marriage between persons of the same sex is void and prohibited."); ARK. CODE
ANN. § 9-11-107(a) (Michie 1997) ("All marriages contracted outside this state
which would be valid by the laws of the state or country in which the marriages
were consummated and in which the parties then actually resided shall be valid
in all the courts in this state."); ARK. CODE ANN. § 9-11-107(b) (Michie 1997)
("This section shall not apply to a marriage between persons of the same sex.");
FLA. STAT. § 741.212(1) (2000):
Marriages between persons of the same sex entered into in any
jurisdiction, whether within or outside the State of Florida, the United
States, or any other jurisdiction, either domestic or foreign, or any
other place or location, or relationships between persons of the same
sex which are treated as marriages in any jurisdiction, whether within
or outside the State of Florida, the United States, or any other
jurisdiction, either domestic or foreign, or any other place or location,
are not recognized for any purpose in this state.
GA. CODE ANN. § 19-3-3.1(b) (1998):
No marriage between persons of the same sex shall be recognized as
entitled to the benefits of marriage. Any marriage entered into by
persons of the same sex pursuant to a marriage license issued by
another state or foreign jurisdiction or otherwise shall be void in this
state. Any contractual rights granted by virtue of such license shall be
unenforceable in the courts of this state and the courts of this state
shall have no jurisdiction whatsoever under any circumstances to grant
a divorce or separate maintenance with respect to such marriage or
otherwise to consider or rule on any of the parties' respective rights
arising as a result of or in connection with such marriage.
IDAHO CODE § 32-209 (1996) ("All marriages contracted without this state, which
would be valid by the laws of the state or country in which the same were
contracted, are valid in this state, unless they violate the public policy of this
state. Marriages that violate the public policy of this state include, but are not
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BAEHR MYSTERIES
statute and given Hawaii's case law suggesting that nonpolygamous, non-incestuous marriages validly celebrated
elsewhere will be recognized in Hawaii as long as those
unions were contracted voluntarily,'76 there is reason to
believe that same-sex marriages if validly celebrated
elsewhere will be recognized locally.
By not requiring the reenactment of the marriage
restriction, the Baehr court may have been helpful in that,
otherwise, the legislature might not only have restricted
marriage but might also have made clear that same-sex
marriages validly celebrated elsewhere would not be
recognized in Hawaii. Of course, the legislature can still do
that if it so desires and, in any event, it is unclear how such a
marriage would be treated were another state to recognize
such marriages and were a Hawaiian same-sex couple to
travel to that state to marry and then return home.
Nonetheless, it is at least more likely that such a marriage
would be recognized if validly celebrated elsewhere than
would have been the case if a statute expressly denying such
limited to, same-sex marriages."); IND. CODE § 31-11-1-1(b) (1998) ("A marriage
between persons of the same gender is void in Indiana even if the marriage is
lawful in the place where it is solemnized."); MICH. COMp. LAws § 551.272(2)
(2000) ("This state recognizes marriage as inherently a unique relationship
between a man and a woman,... and therefore a marriage that is not between
a man and a woman is invalid in this state regardless of whether the marriage
is contracted according to the laws of another jurisdiction."); Miss. CODE ANN. §
93-1-1(2) (1999) ("Any marriage between persons of the same gender is
prohibited and null and void from the beginning. Any marriage between
persons of the same gender that is valid in another jurisdiction does not
constitute a legal or valid marriage in Mississippi."); N.C. GEN. STAT. § 51-1.2
(1996) ("Marriages, whether created by common law, contracted, or performed
outside of North Carolina, between individuals of the same gender are not valid
in North Carolina."); OLKA. STAT. tit. 43, § 3.1 (1997) ("A marriage between
persons of the same gender performed in another state shall not be recognized
as valid and binding in this state as of the date of the marriage."); VA. CODE
ANN. § 20-45.2 (Michie 1997) ("A marriage between persons of the same sex is
prohibited. Any marriage entered into by persons of the same sex in another
state or jurisdiction shall be void in all respects in Virginia and any contractual
rights created by such marriage shall be void and unenforceable.").
176. See, e.g., Republic v. Li Shee, 12 Haw. 329 (1900).
The general rule is that marriages legal where entered into are legal
everywhere unless odious by the common consent of civilized nations.
See Civ. L. Sec. 1872. The exceptions usually instanced are polygamous
and incestuous marriages. To these may be added marriages where the
requisite element of consent is lacking, as, for instance, if one of the
parties is insane or is forced to go through the ceremony and there is no
cohabitation afterwards.
Id. at 330.
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recognition had been enacted. Thus, it may be that the Baehr
court's method of addressing and deciding the relevant issues
should be viewed more positively.
V. CONCLUSION
The recent Hawaii constitutional amendment gave the
legislature the power to reserve marriage for different-sex
couples. However, precisely because this amendment was
power-conferring rather than substantive, the court should
not have construed it to have retroactively validated a portion
of the Hawaii marriage statute. Indeed, if the amendment is
so construed, then the literature sent to the voters describing
that amendment was misleading in violation of local law and,
further, may have undermined the legitimacy of the
amendment itself.
As H.L.A. Hart has made clear, statutes conferring
powers and statutes establishing rights or disabilities... are
different in kind and thus an amendment doing the former
should not be construed as doing the latter, absent express
language to that effect. The Hawaii amendment clearly
conferred a power but said nothing about validating a
disability to marry, and, thus, should not have been construed
to have done so. By the same token, the established
retroactivity jurisprudence in Hawaii and elsewhere makes
clear that statutes or portions thereof will not be retroactively
validated by amendment, absent express declaration to that
Because the amendment said nothing about
effect.
retroactively validating a portion of the Hawaii marriage
statute and, indeed, the explanation of the amendment
mailed to the voters suggested that it would have no such
retroactive validation effect, the amendment should not have
been so construed, even implicitly.
The Baehr court's opinion is somewhat mysterious.
Because it is so terse and opaque, one can only guess about
whether the court understood the implications of its holding
regarding retroactivity or the possible invalidity of the ballot
itself. Nonetheless, some parts of the opinion were very clear.
For example, it reaffirms what other courts are beginning to
recognize, namely, that bans on same-sex marriages classify
177. See BLACK'S LAW DICTIONARY 712 (6th ed. 1990) (disability is defined as
"The want of legal capability to perform an act.").
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BAEHR MYSTERIES
on the basis of sex.178 Indeed, appearances to the contrary
notwithstanding, the opinion may eventually help to secure
the recognition of same-sex marriage in Hawaii or elsewhere
since the opinion suggests both that same-sex marriage bans
are vulnerable on federal constitutional grounds 7. and that
the validity of the Hawaii amendment itself is open to
question.
A separate issue is how the Hawaii Supreme Court
should decide the next retroactive validation question
brought before it, since the court has either implicitly
reversed the standard presumptions regarding retroactivity
or has adopted an interpretation of the Hawaii Constitution
that rejects those standard presumptions. The most likely
resolution is that the court will implicitly overrule itself so
that it can restore the jurisprudence that has always existed
without having to revisit an issue which the court clearly
finds too onerous to continue to address.
The most disappointing aspect of the Baehr decision was
not the result per se, since it seems likely that the legislature
would in fact have reenacted the legislation had the court
held that doing so was necessary. 8 ' Rather, it is that
recognizing the personhood of lesbians and gays is still so
controversial that courts must sometimes obscure the
relevant legal issues, whether consciously or unconsciously,
so that they can both recognize the basic human dignity of
lesbians and gays and, at the same time, placate those
committed to refusing to recognize that inherent human
worth.
178. See Baker v. State, 744 A.2d 864, 865, 874 (Vt. 1999).
179. This is especially true since the state supreme court has construed the
relevant statute as classifying on the basis of sex and federal courts are
supposed to defer to that interpretation. See STRASSER, supra note 167, at 63
(discussing federal deference to state courts' statutory construction).
180. It is hard to say whether other benefits might have been accorded as
part of a deal to secure an easy reenactment. See supra note 74 and
accompanying text (discussing this possibility).